DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

FOR OFFICIAL USE ONLY

ex-LTJG, USNR
Docket No. ND06-00912

Applicant’s Request

The application for discharge review was received on 20060628.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070419.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Discharge and characterization of service not warranted by service record

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s service records on CD
E-mail from Applicant to CDR D_, dated December 8, 2004
Eighteen pages from Applicant’s service record
Applicant’s DD Form 214 (Service 2)
E-mail between Applicant and T_ M. J_ between December 28, 2004 and December 29, 2004

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Commission:  20020322*		Date of Discharge:  20050630

Length of Service (years, months, days):**

	Active:    03  02  12
	Inactive:  00  00  03

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Commission:  26

Type of Commission:  Reserve

Education Level:  16			Degree:  Not found in service record

Highest Grade:  LTJG

Final Officer’s Fitness Reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Service Medal

*Applicant’s service record indicates that her date of rank as an Ensign was 020322; that she accepted her commission on 020416; that she commenced active duty on 020419; and that she was promoted to the rank of Lieutenant junior grade on 040326.  

**Calculated from the date Applicant accepted her commission as an Ensign, 020416.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events: 

020322:	Applicant date of rank as an Ensign in the United States Navy Reserve.

020419:	Applicant commenced active duty.

040326:	Applicant promoted to the grade of LTJG.

050215:	NJP for violation of UCMJ, Article 107:
	Specification 1: On or about March 2004, with intent to deceive, make an official statement, to wit: “Legal is aware of my surrogacy and they approved,” which statement was totally false.
	Specification 2: On or about March 2004, with intent to deceive, make an official statement, to wit: “I am an in-vitro patient and I am doing the surrogacy for my cousin,” “I am not receiving compensation,” and “I received approval from my prior direct report.”
	Specification 3: On or about 040526, with intent to deceive, make an official statement, to wit: “I am an in-vitro patient and I am doing the surrogacy for my cousin,” which statement was totally false.
	Specification 4: On 040608, with intent to deceive, make an official statement, to wit: I am a surrogate mother for my cousin, and I will be giving the twins to my cousin when I deliver,” which statement was totally false.
Violation of UCMJ, Article 133:
Specification 1: On active duty, between March and June 2004, wrongfully and dishonorably, make false official statements.
Specification 2: On or about the beginning of 2004, enter into a Gestational Carrier Agreement with R_ and P_ H_, non-beneficiaries, with provisions providing that LTJG G_ (Applicant)’s health insurance will cover the medical costs associated with the birth of the children, wherein under the Code of Virginia, Section 20-162, surrogacy contracts not previously approved by the court require a guarantee by the intended parents for payment of reasonable medical costs, and by failing to have the intended parents provide for these costs, LTJG actions were dishonorable and placed an undue burden upon the United States Government to absorb these costs.
Specification 3: On or about the beginning of 2004, voluntarily enter into a Gestational Carrier Agreement to carry the children of the intended parents, intentionally making herself undeployable in order to fulfill the contractual agreement made in her personal capacity, and which arrangement resulted in a loss of 57 days of work, and that these acts under the circumstances, constitute conduct unbecoming an officer and a gentleman.
	Award:  Written reprimand, forfeiture of $1485.30 per month for 2 months.  Not appealed.

050228:	Commander, Naval Medical Center, Portsmouth, issued Punitive Letter of Reprimand.

050307:	Applicant submitted written response to Punitive Letter of Reprimand for inclusion in service record.

Unknown:	Applicant submitted qualified resignation request.
	[Extracted from Commander, Naval Medical Center, Portsmouth, Report of Nonjudicial Punishment dtd 050322 and Chief of Naval Personnel recommendation dtd 050425.]

050322:	Commander, Naval Medical Center, Portsmouth, forwarded Report of Nonjudicial Punishment with Applicant’s qualified resignation request enclosed, recommending that resignation be accepted with characterization of service as General (Under Honorable Conditions).

050425:	Chief of Naval Personnel recommended that the Secretary of the Navy approve Applicant’s qualified resignation request, and recommended characterization of service as Honorable.

050513:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s qualified resignation request and directed discharge by reason of misconduct with a characterization of service as General (Under Honorable Conditions).

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050630 by reason of misconduct (A) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by nonjudicial punishment for violations of Articles 107 and 133 of the UCMJ.  There is no evidence in the record to support the Applicant’s contention that she was improperly punished merely because superior authorities did not approve of her decision to act as a surrogate.  The Applicant acknowledges that she lied to her superiors by claiming that she carried children for her cousins.  Such behavior by a commissioned officer is in and of itself sufficient to warrant the discharge the Applicant received.  In addition, under the circumstances of her case, the record supports the conclusion, substantiated by the findings at the nonjudicial punishment proceedings, that the Applicant entered into a surrogacy arrangement in violation of Virginia state law in order to secure medical benefits from the United States government which otherwise might not be obtained, and then lied about the nature of the surrogacy arrangement in order to obtain those medical benefits.  The record does support the conclusion that the Applicant was afforded all substantive and procedural rights to which she was entitled in regards to the investigation into her conduct and the subsequent allegations of misconduct levied against her.  Therefore, the Board found the Applicant’s discharge to be proper and equitable.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her service obligation to the U.S. Navy and falls far short of that required for an upgrade of her characterization of service.  Relief is not warranted.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Instruction 1332.30 of 14 March 1997.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

The names and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
 			Washington Navy Yard DC  20374-5023